Greenleaf v. Norfolk Southern R.R. Co..

Decision Date31 October 1884
CourtNorth Carolina Supreme Court
PartiesH. J. GREENLEAF v. NORFOLK SOUTHERN RAILROAD COMPANY.

OPINION TEXT STARTS HERE

CIVIL ACTION, tried at Spring Term, 1884, of PASQUOTANK Superior Court, before Gudger, J.

This action was instituted on the 1st day of June, 1880, to recover the sum of $952.14 claimed to be due the plaintiff from the defendant, upon a liquidated account dated April 18, 1876. It was originally brought against the Elizabeth City and Norfolk railroad company (now the Norfolk Southern). The facts are stated in the opinion here. Judgment for plaintiff; appeal by defendant.

Messrs. Grandy & Aydlett, for plaintiff .

Messrs. Starke & Martin, for defendant .

SMITH, C. J.

This action is prosecuted by the plaintiff assignee of William A. Greenleaf, to recover the balance of an alleged indebtedness due for services rendered as secretary of the defendant company under its former name and organization in the sum of nine hundred and fifty-two dollars and fourteen cents, with interest thereon accrued since April 18th, 1876.

The answer controverts any liability in the premises, and, if any exists, sets up as a defense thereto the lapse of time as a bar to the action. Several issues were submitted to the jury and passed on, of which it is only necessary to consider two as bearing upon the subject matter of the defendant's appeal.

1. Is the defendant company indebted to the

plaintiff, and, if so, in what sum? The jury answer: Yes, about nine hundred and fifty-two dollars and fourteen cents, with interest to date.

4. Is the plaintiff's claim barred by the statute of limitations? The jury answer: It is not.

Upon the trial the defendant's counsel requested the court to give these instructions to the jury:

1. In order to remove the bar of the statute of limitations the new promise must be in writing, and must be unconditional, and if the jury believe from the evidence that the new promise alleged by the plaintiff to have been made by the defendant was not in writing, or was to pay a less amount than the original debt, or in some modified form, then the plaintiff is not entitled to recover.

The court gave the charge, adding: But if the promise was in writing and to pay the full amount, it removes the bar of the statute. To this the defendant excepted.

2. It is not within the ordinary scope of the power and authority of a secretary of a railroad corporation to make contracts binding such corporation, and unless from the evidence the jury believe that the secretary of the defendant company was expressly authorized by a regular vote of the board of directors of the company to make the written contract, which plaintiff alleges to have been made, the defendant is not bound by the contract, and the plaintiff cannot recover in this action.

The instruction was given with the omission of the concluding words, “and the plaintiff cannot recover in this action,” in place of which were substituted the following: “But if such contract, if made by the secretary, was afterwards ratified by the company, it is a contract binding upon it.” The defendant again excepts.

The first exception cannot be sustained unless the substituted sentence so changes the meaning of the instruction as to make it erroneous in law. This is not the effect, for it leaves in full force every substantial element in the charge given in the very form asked, and is but the counterpart of the proposition. The instruction is that the promise, to be operative, must be in writing--unconditional, and not to pay a sum less than the original debt. These conditions must unite in order to remove the statutory bar. The subjoined qualification is, that, if it be in writing and to pay the whole debt, it must revive the contract and displace the obstruction in the way of recovery. Taken in its entirety, the charge leaves in full force what had been before said, that the promise must be in writing, extend to the whole debt, and not be in “a modified form,” by which last expression is meant that the promise must be to pay in money, and not in something else of value, or in other words the reviving promise must be commensurate with the original promise.

The argument for the appellant was pressed with much earnestness that an important feature in the “promise or acknowledgment” required by the statute to give it effect is omitted, in that, it must be signed by the party to be charged,” and that this is error. C. C. P. § 51.

The charge, as requested and as given, evidently assumes the presence of the necessary signature and the formal execution, otherwise it would not be the defendant's contract, and is directed to a description of the essential substance of the contract and its efficiency when properly entered into. No distinction between a contract, signed by the debtor himself and one executed on his behalf by...

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19 cases
  • State v. Snipes
    • United States
    • North Carolina Supreme Court
    • 16 Mayo 1923
    ... ... evidence and the charge of the court. Greenleaf v ... Railroad, 91 N.C. 33; State v. Gilchrist, 113 ... Wilson, 168 N.C. 557, 84 ... S.E. 866; Reynolds v. Ex. Co., 172 N.C. 487, 90 S.E ... 510, Ann. Cas. 1918C, 1071; ... ...
  • Morris v. Y. & B. Corporation
    • United States
    • North Carolina Supreme Court
    • 21 Mayo 1930
    ... ... Co". of America ...          CLARKSON, ...     \xC2" ... to have ratified the whole." Greenleaf v. R ... Co., 91 N.C. 33; Lewis v. R. Co., 95 N.C ...          It is ... well settled in Norfolk-Southern R. Co. v. Board of ... Com'rs of Carteret County, ... ...
  • State v. Snipes
    • United States
    • North Carolina Supreme Court
    • 16 Mayo 1923
    ...and the verdict construed by reference to and in connection with the evidence and the charge of the court. Greenleaf v. Railroad, 91 N. C. 33; State v. Gilchrist, 113 N. C. 676, 18 S. E. 319; State v. Gregory, 153 N. C. 648, 69 S. E. 674; Richardson v. Edwards, 156 N. C. 590, 72 S. E. 482; ......
  • Morris v. Y & B Corp.
    • United States
    • North Carolina Supreme Court
    • 21 Mayo 1930
    ...transaction, he must also accept the part that is not beneficial and will be held to have ratified the whole." Greenleaf v. R. Co., 91 N. C. 33; Lewis v. R. Co., 95 N. C. 179; Hill v. R. Co., 143 N. C. 539, 55 S. E. 854, 9 L. R. A. (N. S.) 606; Watson v. Mfg. Co., 147 N. C. 469, 61 S. E. 27......
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